No Excuse Incentive Provisions Survey

Report
No Excuse Incentive Provisions
Survey
~ May 2010 ~
AASHTO SUBCOMMITTEE ON CONSTRUCTION
Contract Administration Section
No Excuse Incentive Provisions Survey
Table of Contents
No Excuse Incentive Provision (Definition)
3
Survey Questions:
1. Does your State use NEI provisions?
4
2. How many projects per year use NEI provisions?
5
3. What are State’s criteria for use?
6
4. What is the most common reason for setting the NEI date?
7
5. What catastrophic events are described as exceptions to the “No Excuse” coverage?
8
6. What criteria are used in developing the NEI contract amount?
9
7. Does the NEI provision describe the anticipated time for State review of Contractor submissions?
10
8. What percentage of contracts pay the NEI amount?
11
9. Are there any special precedence for paying the NEI amount?
12
NEI Provisions and Web Links
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Definition:
No Excuse Incentive Provision
No Excuse Incentive (NEI) Provision is a contract provision
that provides a monetary incentive for early completion. A
“drop-dead date” is usually specified for the completion of a
phase of work or for the entire project. If the work is
completed on or in advance of this date, the contractor will
receive the full incentive payment. There are no excuses for
adjusting this date including utilities, permitting, change
orders, weather, differing site conditions, or any other cause
short of a natural catastrophe.
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1. Does your State use NEI provisions?
Other
25%
Yes (14)
Yes
44%
No (10)
We did evaluate one
or more projects
but no longer use (8)
No
31%
32 States Responded
Yes: AL, FL, GA, IA, MA, MN, MO, NC, PA, SC, SD, VA, WI, WY
No: AK, AR, DE, IN, KS, NE, NH, NM, OK, OR
We did evaluate but no longer use: CO, CT, ID, KY, ND, NY, OH, WV
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2. If NEI provisions are in use, approximately
how many projects per year use NEI provisions?
Less than One More than Two
14%
21%
More than Two (3)
One to Two (9)
Less than One (2)
One to Two
64%
More than Two: AL, SC, WI
One to Two: GA, IA, MA, MN, MO, NC, PA, SD, VA
Less than One: FL, WY
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3. What are State’s criteria for use?
AL: Typically use this provision in an effort to minimize disruptions to traffic (high traffic volumes, narrow lanes, detours, etc).
FHWA Tech Advisory T 5080.10 "Incentive/Disincentive for Early Completion" used as a guide.
FL: FDOT guidance document: http://www.dot.state.fl.us/construction/Manuals/cpam/New%20Clean%20Chapters/Chapter1s2.pdf
GA: Traffic volume, location and type of work
IA:
Rarely used. Completion of a major new bypass facility due to local impacts has been a candidate project. No written policy
exists.
MA: We generally apply the project selection criteria contained in the 02-08-1989 FHWA Technical Advisory
T 5080.10
"Incentive/Disincentive (I/D) For Early Completion" to NEI project selection.
MN: These (contract amount, type of work, traffic volume, location, school opening dates) are all considerations.
MO: Traffic volume, location and opening date
NC:
PA:
SC:
SD:
High user cost and/or facility need
So far, completing a multi-year project one season early.
It varies. It may be considered on any high profile project. High traffic volumes are one of the main considerations.
Extreme circumstances were traffic is critical. Typically used in and around Sturgis for completion of work or phase prior to
the annual Sturgis Motorcycle Rally.
VA: There is not a state policy governing NEI provisions. We look at traffic volume, impact to the public, business/economic
impact, etc.
WI: http://roadwaystandards.dot.wi.gov/standards/fdm/19-15-018.pdf
WY: Usually used to reduce impacts to a local community and are for a portion of the work that effects the travel way. Usually not
for the completion of the project as a whole.
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4. What is the most common reason for setting the NEI date?
AL: Dates are set to minimize disruptions impacts to traffic flow.
FL: Accelerated completion of the project or a specific milestone component of the project
GA: Road user costs
IA: Opening to traffic
MA: The elimination of a time-consuming detour and/or the elimination of a detour that has been in effect for an inordinate
amount of time.
MN: End of the construction season
MO: Opening date to meet public commitment
NC: High user cost and/or facility need
PA:
SC:
SD:
VA:
WI:
WY:
Meeting a completion date that is earlier than the original contract completion date.
Special events, school openings, seasonal traffic fluctuations.
Special event date
Impact to the public and business/economic impact.
Work affecting another adjacent project/Special event date
Usually for a road to be closed, get work done and reopen.
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5. What catastrophic events are described as
exceptions to the "No Excuse" coverage?
9
8
7
6
5
4
3
2
1
0
Hurricane (4)
Earthquake (2) Declared State of
Emergency (3)
Flood (2)
None (8)
Other
Comments (5)
Other Comments:
FL:
In the event of a catastrophic event (i.e., hurricane or a declared state of emergency) directly and substantially affecting the
Contractor’s operations on the Contract, the Contractor and the Department shall agree as to the number of calendar days to extend
the “Bonus Completion Date”.
MA: "...catastrophic event and/or a declared state of emergency..."
SC:
Catastrophic events (hurricane or a declared state of emergency.)
VA:
Act of war etc. These must meet the "catastrophic event" criteria to be considered.
WI:
Industry wide labor disputes / Acts of the government
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6. What criteria are used in developing the NEI
contract amount?
12
10
8
6
4
2
0
Estimate of Contractor's
Extra Costs to meet the
NEI date
Estimate of Road User
Costs between NEI
date and the normal
completion date
Estimate of Construction
Engineering Costs
between NEI date and
the normal completion
date
Other Comments
Other Comments:
WI:
Business/economic impact
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7. Does the NEI provision describe the anticipated
time for State review of Contractor submissions?
Yes
7%
No
93%
Yes (1)
No (13)
Yes: MA
No: AL, FL, GA, IA, MN, MO, NC, PA, SC, SD, VA, WI, WY
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8. What percentage of contracts pay the NEI
amount?
Greater than 85% (5)
< 75%
> 85%
Between 75% and 85%
(5)
Between 75%
and 85%
Less than 75% (3)
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9. If a contractor was delayed by action outside of its
control, resulting in the loss of the NEI, is there any
special precedence for the state being required to pay
the NEI amount?
FL:
Current Language:
However, notwithstanding anything above to the contrary, upon the Contractor’s written request being made directly
to the Chief Engineer, with copies provided to both the Resident Construction Engineer and the District
Construction Engineer, the Department reserves unto the Chief Engineer, in his sole and absolute discretion,
according to the parameters set forth below, the authority to make a determination to either fully enforce the above
provisions with no modification, modify the “Bonus Completion Date” by moving it, or both modify the “Bonus
Completion Date” by moving it and also modify the “Bonus” amount by reducing it.
IA:
We are currently evaluating a situation where another bridge project located within the project limits was delayed
beyond the contractor’s control. This is a site of work issue that was not conveyed in the proposal.
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10. NEI Provisions and Web Links
State Guidance Documents
Caltrans: Caltrans Alternative Procurement Guide link:
http://www.dot.ca.gov/hq/oppd/contracting/AlternativeProcurementGuide.pdf
See Part 4.5 - No Excuse Incentives
FL:
http://www.dot.state.fl.us/construction/Manuals/cpam/New%20Clean%20Chapters/Chapter1s2.pdf
WI:
http://roadwaystandards.dot.wi.gov/standards/fdm/19-15-018.pdf
State NEI Provisions
AL:
Example NEI provision attached.
FL:
ftp://ftp.dot.state.fl.us/LTS/CO/Specifications/WorkBook/Jul2010/SP0081300BCD.pdf
SC:
Example NEI provision attached.
WI:
Example NEI provision and related info attached.
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Wisconsin Example NEI Provision and Related Info:
Incentive/Disincentive for Interim Completion of Work, Item 108.3100.S.
A General
This item shall consist of either an incentive payment or a disincentive pay reduction as specified below.
The contractor shall complete all of the work necessary to enter requirements for work completion on this contract prior to 12:01 AM date, or within such
extended time as may be allowed.
The completion time allowed for this contract is based on an expedited work schedule.
Under this Incentive/Disincentive plan, no time extensions will be granted for adverse weather conditions; for delays in material deliveries; or for labor
disputes unless it can be shown that such disputes are industry wide.
Each day shall be defined as a 24 hour period beginning at 12:01 AM.
The maximum incentive payment, as shown on the Schedule of Items, is for department accounting purposes. The actual incentive payment the contractor
may receive shall be in accordance to Section B of this provision.
Incentive payments will not be considered as part of the money value of the work completed for computing time extensions.
B Incentive Payment
The contractor shall be entitled to an incentive payment for completion of all of the work necessary to enter requirements for work completion on this
contract prior to 12:01 AM, date or such extended time as may be allowed.
The incentive payment shall be paid at the rate of $Enter incentive amount per calendar day for each day or portion thereof, of completion prior to 12:01
AM date. The maximum amount of incentive payment shall not exceed $Enter maximum incentive amount.
C Disincentive Pay Reduction
Should the contractor fail to complete all of the work necessary to enter requirements for work completion under this contract prior to 12:01 AM, date or
within such extended time as may be allowed, the contractor shall be liable to the department for a pay reduction in the amount of $Enter the disincentive
amount per day or portion thereof, for each calendar day after 12:01 AM, date that work remains incomplete.
If contract time expires before completing all work specified in the contract, additional liquidated damages in accordance to 108.11 of the standard
specifications will be affixed in addition to the disincentive pay reduction.
D Measurement and Payment
Incentive/Disincentive for interim Completion of Work will be measured by the calendar day and will be paid for at the contract unit price per calendar
day.
The unit price per day based on the incentive pay adjustment shall be compensation in full for completing the work as hereinbefore specified.
The unit price per day based on the disincentive pay reduction shall be assessed for failing to complete all the work as hereinbefore specified.
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Wisconsin Example NEI Provision and Related Info (continued) :
108-056 (20080501)
Prior to beginning operations under this contract, submit in writing the proposed schedule of operations to the engineer for
approval.
At the beginning of (List appropriate construction operations) operations, close (Route # / Street Name) to through traffic for a
maximum of (Enter #) of calendar days calendar days. Do not reopen until completing the following work: (Describe Work)
Supplement subsection 108.11 of the standard specifications as follows:
If the contractor fails to complete the work necessary to reopen (Route # / Street Name) to traffic within (# of calendar days)
calendar days, the department will assess the contractor $dollar amount for damages in interim liquidated damages for each
calendar day the contract work remains incomplete beyond (# of calendar days) calendar days. An entire calendar day will be
charged for any period of time within a calendar day that the road remains closed beyond 12:01 AM.
This language is usually included in the STSP above:
The department will not grant time extensions to the interim completion dates specified above for the following:
1. Severe weather as specified in subsection 108.10.2.2 of the standard specifications.
2. Labor disputes that are not industry wide.
3. Delays in material deliveries.
If contract time expires prior to completing all work specified in the contract, additional liquidated damages will be affixed in
accordance to subsection 108.11 of the standard specifications.
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ALABAMA DEPARTMENT OF TRANSPORTATION
DATE: April 18, 2007
SUBJECT:
Special Provision No. 06-0523-R2
Incentive Payments, Disincentive Deductions, Performance Bonus and
Liquidated Damages, Projects No. IM-NHF-I065(375) and NHF-I065(378),
Montgomery County.
Alabama Standard Specifications, 2006 Edition, SECTIONS 101 and 108 shall be
amended as follows:
SECTION 101
DEFINITION OF TERMS
101.01 Definitions.
(b) TERMS.
This Subarticle (101.01(b)) shall be amended by adding the following definition
thereto:
Incentive Payments and Disincentive Deductions. A contract provision in which is given
the means by which:
- the Contractor is compensated a certain amount of money for each hour or day a
phase of the project or a defined period of construction work is completed ahead of
schedule and;
- the Contractor is assessed a deduction for each hour or day the Contractor overruns
the time set for the completion of a phase of the project or a defined period of construction
work.
The Incentive/Disincentive provision is intended to motivate the Contractor so that
work will be completed on or ahead of schedule on critical projects where traffic
inconveniences and delays must be minimized.
Performance Bonus. A contract provision in which is given the means by which a
Contractor is compensated a certain amount of money for each hour or day a phase of the
project or a defined period of construction work is completed ahead of schedule. The
Performance Bonus is intended to motivate the Contractor so that work will be completed
on or ahead of schedule on critical projects where traffic inconveniences and delays must
be minimized.
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Special Provision No. 06-0523-R2
SECTION 108
PROSECUTION AND PROGRESS
108.08 Determination of Contract Time.
(a) GENERAL.
This Subarticle (108.08(a)) shall be replaced by the following:
(a) ASSIGNMENT OF TIME.
The calendar date of October 15, 2009 is assigned for completion of all of the work
included in the contract.
Calendar days are assigned to defined periods of time within the overall time allowed
for the completion of all work. These periods of time are defined for the completion of
significant portions of the work. Incentive payments, disincentive deductions and
performance bonus payments will be made depending on the progress of construction
during these defined periods of time.
The first defined period of time is the time allowed from the beginning of contract time
charges until the north bound traffic is placed on the newly constructed pavement in the
median during Phase IV A shown in the Sequence of Construction on the Plans.
The second defined period of time is the time allowed from the completion of all of the
work in the first defined period of time until the north bound traffic is placed on the
reconstructed north bound lanes. During the second defined period of time the Contractor
shall keep one lane in each of the following ramps (including access to the ramps) open
except for the time allowed for closure of the ramps for ramp construction:
- the north bound entrance ramp from US 80 onto I-65;
- the north bound exit ramp from I-65 onto the Southern Bypass;
- the north bound entrance ramp from the Southern Bypass onto I-65.
Each ramp may be closed for a maximum time period of 4 calendar days for the
construction of the ramp.
The third defined period of time is the time after the completion of all of the work in
the second defined period of time for the continuation of the work before south bound
traffic is shifted to the pavement in the median.
The fourth defined period of time is the time allowed from the placement of south
bound traffic in the median during Phase IV B in the Sequence of Construction until the
south bound traffic is placed on the reconstructed southbound lanes.
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Special Provision No. 06-0523-R2
108.09 Extension of Contract Time.
This Article (108.09) shall be replaced by the following:
108.09 Extension of Contract Time.
Requests for extensions of time will not be considered. Weather will not be considered
as a reason for a time extension. Regardless of any delays encountered the Contractor is
expected to increase the equipment, labor force, and working hours in order to complete
the project within the assigned contract time.
The defined periods of time for construction within the overall contract time were set
based on the assumption that unsuitable material will be encountered under the existing
roadway pavement.
108.10 Failure to Complete Work Within Contract Time.
This Article (108.10) shall be replaced by the following:
108.10 Failure to Complete Work Within The Contract Time Periods.
(a) TIME.
Time is of the essence in completing the contract work. It is in the interest of the public
and the State to have the work completed as quickly as possible. Any delay in completing
this work will inconvenience and be expensive to the traveling public, obstruct traffic,
interfere with and delay business and commerce and increase the cost of the project to the
State. Furthermore, during each day that the work is under construction, the users of the
highway will incur costs as a result of delays caused by construction.
(b) PERFORMANCE BONUS FOR THE FIRST DEFINED PERIOD OF TIME.
The first defined period of time is the time allowed from the beginning of contract time
charges until the north bound traffic is placed on the newly constructed pavement in the
median during Phase IV A shown in the Sequence of Construction on the Plans. The
Contractor will be paid a performance bonus of $1,000,000 if north bound traffic is placed
on the newly constructed pavement in the median by April 1, 2008.
(c) INCENTIVE/DISINCENTIVE FOR THE SECOND DEFINED PERIOD OF TIME.
1. WORK ASSIGNED FOR THE SECOND DEFINED PERIOD OF TIME.
The second defined period of time is the time allowed from the completion of all of the
work in the first defined period of time until the north bound traffic is placed on the
reconstructed northbound lanes.
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Special Provision No. 06-0523-R2
2. INCENTIVE PAYMENTS FOR SECOND DEFINED PERIOD OF TIME.
a. Overall Incentive for Second Defined Period of Time
An incentive payment will be made to the Contractor if the work assigned for the
second defined period of time is completed within 17 calendar days. For each full calendar
day that the work in the second defined period of time is completed before the expiration
of 17 calendar days assigned for this work, the Contractor will be paid $100,000.
b. Incentive for Ramp Closure and Construction within Second Defined Period of Time.
During the second defined period of time the Contractor will be allowed 4 calendar
days to close and complete the construction of the following ramps:
- the north bound entrance ramp from US 80 onto I-65;
- the north bound exit ramp from I-65 onto the Southern Bypass;
- the north bound entrance ramp from the Southern Bypass onto I-65.
The 4 calendar day time periods for the work on each ramp do not have to be the same
4 calendar day time periods.
For each full calendar day that the work is completed on the northbound entrance
ramp from US 80 onto I-65 before the expiration of the 4 calendar days assigned for this
work, the Contractor will be paid $10,000.
For each full calendar day that the work is completed on the northbound exit ramp
from I-65 onto the Southern Bypass before the expiration of the 4 calendar days assigned
for this work, the Contractor will be paid $10,000.
For each full calendar day that the work is completed on the northbound entrance
ramp from the Southern Bypass onto I-65 before the expiration of the 4 calendar days
assigned for this work, the Contractor will be paid $10,000.
The incentive will be paid if it is earned during days of work when disincentive
deductions are being made from the payment due the Contractor during the overall second
defined period of time. Incentive payments (and disincentive deductions) will be calculated
separately for each ramp.
c. Overall Incentive plus Incentive for Ramp Closure and Construction.
The Contractor will be paid the overall incentive payment and the incentive payments
for ramp closures and construction if the required work is completed within the times
allowed to warrant incentive payments.
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Special Provision No. 06-0523-R2
3. DISINCENTIVE DEDUCTIONS FOR SECOND DEFINED PERIOD OF TIME.
a. Overall Disincentive for Second Defined Period of Time
A disincentive deduction will be made from the payment due the Contractor if the
work assigned for the second defined period of time is not completed in 23 calendar days.
For each full calendar day, or any portion of a calendar day, after the expiration of 23
calendar days that is required to complete the work, $100,000 will be deducted from the
payment due the Contractor.
b. Disincentive for Ramp Closure and Construction within Second Defined Period of
Time. During the second defined period of time disincentive deductions will be made from
the payment due the Contractor if the construction of the following ramps is not completed
in 4 calendar days:
- the north bound entrance ramp from US 80 onto I-65;
- the north bound exit ramp from I-65 onto the Southern Bypass;
- the north bound entrance ramp from the Southern Bypass onto I-65.
The 4 calendar day time periods for the work on each ramp do not have to be the same
4 calendar day time periods.
A disincentive deduction of $10,000 will be made from the payments due the
Contractor for each full calendar day, or any portion of a calendar day, after the expiration
of the 4 calendar days allowed for the completion of the construction of the northbound
entrance ramp from US 80 onto I-65.
A disincentive deduction of $10,000 will be made from the payments due the
Contractor for each full calendar day, or any portion of a calendar day, after the expiration
of the 4 calendar days allowed for the completion of the construction of the north bound
exit ramp from I-65 onto the Southern Bypass.
A disincentive deduction of $10,000 will be made from the payments due the
Contractor for each full calendar day, or any portion of a calendar day, after the expiration
of the 4 calendar days allowed for the completion of the construction of the north bound
entrance ramp from the Southern Bypass onto I-65.
Disincentive deductions (and Incentive payments) will be calculated separately for
each ramp.
c. Overall Disincentive plus Disincentive for Ramp Closure and Construction.
Disincentive deductions will be made for the overall disincentive deduction and the
disincentive deductions for ramp closures and construction if the required work is not
completed within the times allowed to avoid disincentive deductions.
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Special Provision No. 06-0523-R2
c. Overall Disincentive plus Disincentive for Ramp Closure and Construction.
Disincentive deductions will be made for the overall disincentive deduction and the
disincentive deductions for ramp closures and construction if the required work is not
completed within the times allowed to avoid disincentive deductions.
(d) THIRD DEFINED PERIOD OF TIME.
The third defined period of time is an assignment of 30 calendar days after the
completion of all of the work in the second defined period of time. This third defined time
period is assigned for the continuation of the work before south bound traffic is shifted to
the pavement in the median.
Incentive payments, disincentive deductions and performance bonus payments will not
apply to the work done during this period of time.
(e) INCENTIVE/DISINCENTIVE FOR THE FOURTH DEFINED PERIOD OF TIME.
<skipped here for brevity>
(f) DISINCENTIVE DEDUCTIONS.
The Contractor and the State agree that the injury caused by a breach of this contract is
difficult to accurately estimate, and that the amounts of disincentive deduction are
intended to ameliorate damages to the public. The Contractor agrees that the amounts of
disincentive deductions are a reasonable pre-breach estimate of the probable loss to the
public for the Contractor’s failure to complete the required work.
(g) LIQUIDATED DAMAGES.
Should the Contractor, or in case of default, the surety, fail to complete all of the work
required within the overall contract time, a deduction will be made for each full Calendar
Day that any work remains uncompleted. This deduction shall be the amount of liquidated
damages shown in the Schedule of Liquidated Damages given in Article 108.11. The
deduction will be taken from any monies due the Contractor on monthly estimates. Any
adjustments due to approved time extensions or overruns in the contract amount will be
made on the monthly, semi-final or final estimate as may be appropriate.
Liquidated damages assessed as provided in these Specifications is not a penalty, but is
intended to compensate the State for increased time in administering the contract,
supervision, inspection and engineering, particularly that engineering and inspection which
requires maintaining normal field project engineering forces for a longer time on any
construction operation or phase than originally contemplated when the contract period was
agreed upon in the contract. Permitting the Contractor to continue and finish the work or
any part of it after the time fixed for its completion, or after the date to which the time for
completion may have been extended, will in no way operate as a waiver on the part of the
Department of any of its rights under the contract.
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SOUTH CAROLINA NEI EXAMPLE PROVISION
SECTION 108: "NO EXCUSE INCENTIVE" COMPLETION DATE AND WAIVER OF CONTRACTOR CLAIMS.
The Department will pay the Contractor a "No Excuse Incentive" if the work in the Contract is
Substantially Complete prior to the "No Excuse Incentive" Completion Date of August 15.2010
subject to the conditions set forth below.
Substantially Complete is defined as follows:
1.) 1-385 rehabilitation activities are complete which is defined as 1-385 North bound and South
bound lanes as fully operational with the 1-385 North bound detour traffic returned to the
two 1-385 north bound lanes.
2.) No pay item work remains to be finished that would require a lane closure.
3.) All safety features are installed and maintained properly.
The Contractor shall provide the Engineer with written notice at least two weeks prior to
reaching
Substantial Completion. This is to allow the Engineer and Contractor time to jointly inspect the
project and make a Substantially Complete Punch list of work to be finished. The date of Substantial
Completion will be determined by the Engineer when the punch list of work is completed.
The term "calendar day" as used in this Special Provision shall mean every day shown on the
calendar. Calendar days will be consecutively counted regardless of weather, weekends, holidays,
suspensions of Contractor's operations, delays or other events as described herein. For purposes of
the calculation and the determination of entitlement to the "No Excuse Incentive“ stated above, the
"No Excuse Incentive" Completion Date will not be adjusted for any reason, cause or circumstance
whatsoever, regardless of fault, save and except in the instance of a catastrophic event (i.e.,
hurricanes or a declared state of emergency).
When work is deemed Substantially Complete by the Engineer, the Contractor will be paid an
incentive based on the values shown in the table below:
Incentive: $25,000 for each calendar day prior to August 15, 2010
Maximum Payout Of: $750,000
The incentive will be accounted for as a lump sum addition on the Final Estimate.
The Department's intent in including this incentive is to ensure substantial completion of the
project(s) by the "No Excuse Incentive" Completion Date.
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SOUTH CAROLINA NEI EXAMPLE PROVISION
The parties anticipate that delays may be caused by or arise from any number of events during
the course of the Contract, including, but not limited to, work performed, work deleted, change
orders, supplemental agreements, delays, disruptions, differing site conditions, utility conflicts,
design changes or defects, time extensions, extra work, right of way issues, permitting issues, actions
of Suppliers, Subcontractors or other Contractors, actions by third parties, shop drawing approval
process delays, expansion of the physical limits of the project to make it functional, weather,
weekends, holidays, suspensions of Contractor's operations, or other such events, forces or factors
sometimes experienced in highway construction work.
SUCH DELAYS OR EVENTS AND THEIR POTENTIAL IMPACTS ON PERFORMANCE BY THE
CONTRACTOR ARE SPECIFICALLY CONTEMPLATED AND ACKNOWLEDGED BY THE PARTIES IN
ENTERING INTO THIS CONTRACT. AND SHALL NOT EXTEND THE "NO EXCUSE INCENTIVE"
COMPLETION DATE SET FORTH ABOVE. Further, any and all costs or impacts whatsoever incurred
by the Contractor in accelerating the Contractor's work to overcome or absorb such delays or events
in an effort to complete the Contract by the "No Excuse Incentive“ Completion Date, regardless of
whether the Contractor successfully does so or not, shall be the sole responsibility of the Contractor
in every instance and no claims can be filed by the Contractor for such costs or impacts if the
Contractor intends to request payment of the incentive.
In the event of a catastrophic event (i.e., hurricane or a declared state of emergency) directly
and substantially affecting the Contractor's operations on the Contract, the Contractor and the
Department shall agree as to the number of calendar days to extend the "No Excuse Incentive”
Completion Date.
In the event the Contractor and Department are unable to agree to the number of calendar days
to extend the "No Excuse Incentive" Completion Date, the Department shall unilaterally determine
the number of calendar days to extend the "No Excuse Incentive"
Completion Date reasonably necessary and due solely to such catastrophic event and the
Contractor shall have no right whatsoever to contest such determination, unless the Contractor
establishes that the number of calendar days determined by the Department were arbitrary or
without any reasonable basis.
The Contractor shall have no rights under the Contract to make any claim arising out of this "No
Excuse Incentive" provision except as is expressly set forth in this Special Provision.
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3
SOUTH CAROLINA NEI EXAMPLE PROVISION
As conditions precedent to the Contractor's entitlement to any "No Excuse Incentive" the
Contractor must:
(1) Obtain Substantial Completion acceptance by the Department, as determined by the
Engineer on or before the "No Excuse Incentive" Completion Date.
(2) Notify the Department in writing, within 30 days of the final acceptance of the work in the
Contract by the Department, that the Contractor elects to be paid the "No Excuse
Incentive" which the Contractor is eligible to be paid based on the actual final acceptance
date. SUCH WRITTEN NOTICE SHALL CONSTITUTE A FULL AND COMPLETE WAIVER.
RELEASE AND ACKNOWLEDGMENT OF SATISFACTION BY THE CONTRACTOR OF ANY AND
ALL CLAIMS, CAUSES OF ACTION, ISSUES, DEMANDS, DISPUTES, MATTERS OR
CONTROVERSIES, OF ANY NATURE OR KIND WHATSOEVER, KNOWN OR UNKNOWN,
AGAINST THE DEPARTMENT, ITS EMPLOYEES, OFFICERS, AGENTS, REPRESENTATIVES,
CONSULTANTS, AND THEIR RESPECTIVE EMPLOYEES, OFFICERS AND REPRESENTATIVES,
THE CONTRACTOR HAS OR MAY HAVE AS TO WORK PERFORMED, WORK DELETED,
CHANGE ORDERS, SUPPLEMENTAL AGREEMENTS, DELAYS, DISRUPTIONS, DIFFERING SITE
CONDITIONS, UTIUTY CONFUCTS. DESIGN CHANGES OR DEFECTS, TIME EXTENSIONS.
EXTRA WORK, RIGHT OF WAY ISSUES, PERMITTING ISSUES, ACTIONS OF SUPPLIERS OR
SUBCONTRACTORS OR OTHER CONTRACTORS, ACTIONS BY THIRD PARTIES, SHOP
DRAWING APPROVAL PROCESS DELAYS, EXPANSION OF THE PHYSICAL LIMITS OF THE
PROJECT TO MAKE IT FUNCTIONAL, WEATHER, WEEKENDS, HOLIDAYS, SUSPENSIONS OF
CONTRACTOR'S OPERATIONS, EXTENDED OR UNABSORBED HOME OFFICE OR JOB SITE
OVERHEAD, LUMP SUM MAINTENANCE OF TRAFFIC ADJUSTMENTS, LOST PROFITS, PRIME
MARK-UP ON SUBCONTRACTOR WORK, ACCELERATION COSTS, ANY AND ALL DIRECT AND
INDIRECT COSTS, ANY OTHER ADVERSE IMPACTS, EVENTS, CONDITIONS, CIRCUMSTANCES
OR POTENTIAL DAMAGES, ON OR PERTAINING TO, OR AS TO OR ARISING OUT OF THE
CONTRACT. THIS WAIVER, RELEASE AND ACKNOWLEDGMENT OF SATISFACTION SHALL BE
ALL·INCLUSIVE AND ABSOLUTE, SAVE AND EXCEPT ANY ROUTINE DEPARTMENT FINAL
ESTIMATING QUANTITY ADJUSTMENTS.
Should the Contractor fail to actually complete the Contract and obtain Substantial Completion
by the Department as determined by the Engineer on or before the "No Excuse Incentive"
Completion Date, or should the Contractor, having done so, fail to timely request the "No Excuse
Incentive" for any reason, and including but not limited to the Contractor choosing not to fully
waive, release and acknowledge satisfaction as set forth in (2) above, the Contractor shall have no
right to any payment whatsoever under this Special Provision.
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